Close v Moreton Bay Regional Council [2015] QCAT 191

CITATION: Close v Moreton Bay Regional Council [2015] QCAT 191 PARTIES: Veronica Close (Applicant) v Moreton Bay Regional Council (Respondent) APPLICATION NUMBER: GAR043-15 MATTER TYPE: General administrative review matters HEARING DATE: 13 May 2015 HEARD AT: Brisbane DECISION OF: Member Jones DELIVERED ON: 1 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision on 13 February 2015 of the Moreton Bay Regional Council to issue a destruction notice under s 127 of the Animal Management (Cats and Dogs) Act 2008 to Ms Veronica Close in relation to a Rhodesian Ridgeback Crossbreed named Rocky-Marely is confirmed. CATCHWORDS: ADMINISTRATIVE REVIEW – destruction order – hearing and determination in the absence of a party Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 59, s 125, s 126, s 127 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 92, s 93 -- 1 of 9 -- 2 APPEARANCES: APPLICANT: No appearance in person or by representative RESPONDENT: Moreton Bay Regional Council represented by Mr Stuart Duck, Manager, Environmental Health, Ms Ann-Marie Boyd, Co-ordinator Community Health, decision maker and Officer Fry, investigating officer REASONS FOR DECISION Hearing and decision in the absence of Ms Close [1] Veronica Close did not attend the hearing in person or by representative. Section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) have the effect that if: (1) This section applies if— (a) a person has not attended a hearing and the tribunal is satisfied the person has been given notice of the hearing under section 92; or (b) the tribunal is satisfied a person can not be found after reasonable inquiries have been made. (2) The tribunal may hear and decide the matter in the person’s absence. (3) This section applies even if the absent person is a party to the proceeding. [2] Unfortunately Ms Close did not attend the hearing. [3] The QCAT file contained a copy of the notice of hearing and mediation to parties dated 23 March 2015. The notice contained the information required by s 92 of the QCAT Act about the time and place for the hearing. The file also contains a record of the application by Ms Close that the hearing set for 13 May 2015 be adjourned. This application was refused. [4] On the morning of the hearing, three representatives of the Moreton Bay Regional Council were present. The Tribunal case officer made enquiries about whether Ms Close had contacted the Tribunal, for example to advise of any delay. The case officer had not heard from Ms Close. The hearing officer attempted to contact Ms Close on the mobile phone contact recorded on the file a number of times without success. The hearing officer made enquiries outside the hearing room. The hearing was delayed until 10:00 am in the hope that Ms Close would arrive. [5] At 10:00 am Ms Close had not appeared and the hearing was opened. The Moreton Bay Regional Council submitted that the hearing should proceed. They were ready. Rocky had been impounded for approximately three months and it was not in his interests to delay the hearing. -- 2 of 9 -- 3 [6] I was satisfied that the requirements of s 93(1)(a) and (b) had both been met. I came to the view that the hearing should proceed in the absence of Ms Close. I considered the circumstances where appropriate notice of the hearing had been given, Ms Close’s request for an adjournment had previously been refused and no further submissions in relation to an adjournment had been made by Ms Close. I also had regard to the submissions of the Moreton Bay Regional Council in opposing an adjournment. [7] The hearing proceeded in the absence of Ms Close. Destruction Order Introduction [8] Ms Close has applied to the Tribunal for a review of the decision of the Moreton Bay Regional Council to destroy her family dog, Rocky-Marley. Rocky-Marley was seized by the Moreton Bay Regional Council on 10 February 2015 and on 13 February 2015, the Moreton Bay Regional Council made the decision to issue a destruction order. The order is presently stayed by this Tribunal pending the outcome of Ms Close’s application for review.1 [9] The question at the centre of this case is whether Rocky-Marley should be euthanased because he is a risk to community health and safety and that risk cannot reasonably be managed in another way. [10] In reviewing the Moreton Bay Regional Council’s decision to make the destruction order, the Tribunal has all the powers and discretions conferred on the original decision maker but it is not confined to the evidence before the original decision maker. The Tribunal may consider new submissions and arguments.2 [11] In this review, the relevant powers of the Moreton Bay Regional Council are set out in the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the Animal Management Act’). The particular powers considered are the powers under s 125 to seize a dog, and the powers under s 127 to order the destruction of a dog following its seizure. [12] There are a number of requirements the Moreton Bay Regional Council must meet before it can take the very serious step of issuing and giving effect to a destruction order. The power is discretionary. That is, if the 1 Ms Close’ application for review says the decision she is seeking to review is the decision of the Moreton Bay Regional Council on 4 March 2015 which confirmed the decision of 13 February 2015 to order the destruction of Rocky-Marley. Section 186(4) of the Animal Management (Cats and Dogs) Act 2008 (Qld) says that if the internal review decision confirms the original decision, for the purpose of the application for external review, the original decision is taken to be the internal review decision. 2 Sections 17 to 24 of the QCAT Act set out the provisions which govern the Tribunal’s review powers. -- 3 of 9 -- 4 requirements are met the Moreton Bay Regional Council may make the destruction order. It is not mandatory. [13] The orders which the Tribunal can make are set out in s 24 of the QCAT Act. It may confirm or amend the reviewed decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the original decision maker for reconsideration, with any directions it considers appropriate. [14] The Tribunal must determine whether the requirements of s 127 have been established, and if so, the Tribunal must decide whether to exercise its discretion to confirm the order for destruction of Rocky-Marley or to make another order. Background [15] In the events leading up to the destruction order, the Moreton Bay Regional Council had made a declaration that Rocky-Marley was a regulated (dangerous) dog. This happened on 10 October 2014, following a complaint of an attack on a person by Rocky-Marley, which caused injury to the person. Ms Close did not seek a review of the decision to declare Rocky- Marley to be a dangerous dog. [16] When a dog is declared to be dangerous, the owner must meet certain conditions. The conditions are primarily designed to prevent attacks or threats of attack by the dog, and to protect the community’s health and safety. For example, the owner must make sure that: a) There is a proper enclosure for the dog which is child-proof and stops the dog from leaving the enclosure b) The dog is micro-chipped. c) The dog is de-sexed. [17] If the conditions are not satisfied, the Moreton Bay Regional Council may issue a compliance notice.3 This is in the nature of a warning. It gives notice to the owner to comply with the conditions within a certain time, or consequences such as the seizure of the dog and an order for its destruction can follow. Ms Close has not disputed that the Moreton Bay Regional Council issued a compliance notice to her, requiring compliance by 8 December 2014. [18] If the Moreton Bay Regional Council reasonably believes a compliance notice has not been complied with by the time specified, it can seize the dog. The Moreton Bay Regional Council may also seize a dog for other reasons, for example if it reasonably believes the dog is or may be a risk to community health or safety.4 The Moreton Bay Regional Council in this case says it seized Rocky-Marley on 10 February 2015 following a complaint from a member of the public. The Moreton Bay Regional Council 3 Animal Management Act s 132. 4 Ibid, s 125. -- 4 of 9 -- 5 investigator, Officer Fry went to Ms Close’s property. He found Rocky- Marley loose in the front yard, and seized him. The Moreton Bay Regional Council bases the seizure on both the community health or safety and non- compliance grounds. [19] Once a dog has been seized, the Moreton Bay Regional Council may make a destruction order. It must follow a process which gives the owner of the dog notice of the proposed destruction within 14 days, unless the owner takes steps to have the decision reviewed. The owner must be given the opportunity to put his or her case to prevent the destruction to an internal review, and if that fails, to an external review by the Tribunal. [20] Ms Close requested an internal review of the decision. The review was on 4 March 2015 and the destruction order was confirmed. Ms Close then applied to the Tribunal for an external review. Ms Close’s Position [21] Ms Close has provided statements from herself attached to her application. She has also provided material to the Moreton Bay Regional Council which is included in the documents filed by the Moreton Bay Regional Council. [22] Ms Close has two young daughters. Rocky-Marley is a much loved family pet. The family is very upset by what has happened to Rocky-Marley. Ms Close says that Rocky-Marley would never roam and is not violent towards people. She says he would not roam since he was hit by a car. [23] The material outlines a history of bad feeling between Ms Close and some of her neighbours, going back four years. She records incidents of abuse, including racial abuse. She says that Rocky-Marley was taunted by the neighbours, for example by throwing sticks and rocks into her back yard. She believes that some of her neighbours will do anything to get her out of her house, including trying to get her dog put in the pound. [24] The material also contains three statements from friends and family of Ms Close, who state they were harassed by some neighbours when visiting Ms Close’ house. There are also copies of complaints made to the Housing Commission about the behaviour of her neighbours, and a record of a complaint made by Ms Close to police about an incident in December 2014. [25] Ms Close says that on the day that Rocky-Marley was seized, that she had checked that he was chained up in the back yard, before she left to take the girls to school. She disputes the circumstances of the original declaration that Rocky-Marely was a dangerous dog. The Moreton Bay Regional Council’s Position [26] The Moreton Bay Regional Council has given its written reasons to the Tribunal and to Ms Close.5 In summary, the reasons outline the series of 5 Respondent’s statement of reasons filed 7 April 2015. -- 5 of 9 -- 6 events leading up the order for the destruction of Rocky-Marley, and set out the reasons for the order as follows: On Tuesday 10 February 2015 Council received a complaint about a Declared Dangerous Dog not under effective control in the front unfenced yard of its property. For reasons of community health and safety, failure to comply with all the requirements of the Compliance Notice and the mandatory conditions for keeping a Regulated Dog – Dangerous, the dog was seized by Council. The Owner of the Declared Dangerous Dog has also failed to provide proof of the following conditions as required for a Declared Dangerous Dog: i) Failed to provide proof of a Compliant Enclosure ii) Failed to provide proof of the animal being Micro-chipped iii) Failed to provide proof of the animal being de-sexed [27] The reasons also noted that: Council has communicated with the applicant and her advocate from the neighbourhood centre on several occasions to seek a negotiation in relation to seeking full compliance of the conditions so the order could be withdrawn however unfortunately the communications were unsuccessful. Council is of the belief that the applicant does not have the ability either financially or physically to comply with the conditions required of her. Council has given the Applicant every opportunity to achieve compliance. Unfortunately, those opportunities have been consistently ignored. For reasons of public safety, and given the Applicants failure to comply with lawful conditions, the Council submits its decision should be upheld.6 [28] The Moreton Bay Regional Council’s submissions at the hearing confirmed this position. In addition, Officer Fry, the investigating officer gave sworn evidence. Officer Fry’s Evidence [29] Officer Fry gave evidence of his contact with Ms Close and his efforts to encourage and guide compliance with the conditions of the dangerous dog declaration, from the time it was issued on 10 October 2014 until the issue of the compliance notice on 27 November 2014. He has had contact many times with Ms Close in person and by phone and has continued to maintain contact with Ms Close. [30] Officer Fry said that it was always the intention of Moreton Bay Regional Council to work with Ms Close to meet the conditions, especially the requirements about the secure childproof enclosure. He said that after Rocky-Marley was seized, and before the issue of the destruction order, that he had met with Ms Close and her advocate from the Neighbourhood Centre to see if an enclosure could be built within seven days. Officer Fry also said in the week before the hearing, he had met with Ms Close to try to work out how the enclosure could be built, including whether the Men’s Shed could help. He offered free micro-chipping. He said that the Moreton 6 Ibid. -- 6 of 9 -- 7 Bay Regional Council had arrived at this hybrid hearing still willing to negotiate. [31] He described what happened on the day he seized Rocky-Marley. He said that the complaint which triggered his visit to the property was made by a member of the public who had not been involved in the tensions between Ms Close and some neighbours. The person was not concerned for their own safety, but was worried about Rocky-Marley being hit by a car, as he was outside the front yard. [32] Officer Fry said that when he arrived at the property and saw Rocky-Marley in the unfenced front yard, he approached the dog. Rocky-Marley backed away and growled but was not snapping. Officer Fry used the snap pole to catch Rocky-Marley but says he went quietly. Officer Fry said that he observed the chain had been broken and saw where Rocky-Marley had dug out under the fence. [33] Officer Fry described Rocky-Marley as a ‘digger and a jumper’. The back yard of Ms Close property was enclosed by a six foot wooden paling fence on the sides and the back, but in his view this was not a secure enclosure. On a previous visit he had seen Rocky-Marley tethered in the back yard, but he did not consider tethering a long term solution. [34] Officer Fry commented on the tensions in the street. There had been two previous reports concerning Rocky-Marley by the same neighbours (one of which was the basis for the dangerous dog declaration.) He said there were a ‘lot of issues in the street’, ‘tensions over Rocky’, and ‘the animal reacts’. He said that there were a lot of kids in the area and people with disabilities. When asked by Mr Duck how he rated the chances of another attack by Rocky-Marley (if not securely enclosed), Officer Fry rated it at 10 out of 10. In response to a question by Mr Duck, he also confirmed that his dog- handling skills would not be present in the general public. [35] The Moreton Bay Regional Council representatives agreed that if the destruction order was upheld it was still within its discretion when and whether to give effect to the order. Issues and Findings Can the destruction order be made? Are the requirements under s 127 satisfied? [36] Unless the Tribunal is satisfied that the requirements of s 127 of the Animal Management Act are met, the destruction order cannot stand. In this case, s 127 can only apply if an authorised person has seized a dog under s 125.7 [37] Section 125 says that an authorised person can seize a dog if there is or may be a risk to community health or safety or failure to comply with a compliance notice. Ms Close has not disputed that Mr Fry is an authorised 7 Animal Management Act, s 126. -- 7 of 9 -- 8 person. She has not disputed that she has not complied with the compliance notice, which includes requirements that Rocky-Marley be de-sexed and micro-chipped as well as being kept in a secure childproof enclosure. [38] Ms Close has disputed that Rocky-Marley is a threat to community health and safety. I do not need to decide this question for the purpose of determining whether s 125 has been complied with. I am satisfied on the basis of non-compliance with the compliance notice. [39] The next step is to consider whether the requirements of s 127 have been satisfied. Section 127 only applies to regulated dogs. There is no dispute that Rocky-Marley was declared to be a dangerous dog on 10 October 2014 and is therefore a regulated dog for the purpose of s 127. The destruction order can therefore be made, subject to the rights of Ms Close to internal and external review. She has exercised those rights. Discretion to make or affirm the order - should the destruction order be made? Is the community at risk of damage or injury or risk to health or safety? [40] It is a serious matter to order the destruction of a family pet. [41] It is important to keep in mind the purposes of the Animal Management Act in applying the legislation. These include the purposes of the effective management of regulated dogs, and promotion of the responsible ownership of dogs. One of the ways to achieve the purposes is by imposing obligations on regulated dog owners.8 [42] Other purposes are set out specifically in relation to regulated dogs. These purposes include: a) to protect the community from damage or injury, or risk of damage or injury; and b) to ensure the dogs are – i) not a risk to community health or safety; and ii) controlled and kept in a way consistent with community expectations and the rights of individuals.9 [43] It seems to me that the central question is whether the protection of the community reasonably requires the destruction of Rocky-Marley. Clearly the risks posed by dogs which have been declared to be dangerous can be minimised so that the community is adequately protected. This is the purpose of the mandatory conditions for keeping a dangerous dog. [44] Ms Close has disputed the circumstances under which Rocky-Marley was declared to be dangerous. She did not request a review of that decision and the Tribunal cannot now revisit it. 8 Ibid, s 3 and s 4. 9 Ibid, s 59. -- 8 of 9 -- 9 [45] Ms Close says that Rocky-Marley is not dangerous and does not roam. She says that Rocky-Marley is taunted by neighbours who wish to see her gone from her home and Rocky-Marley impounded. It seems clear that there is very unpleasant tension in the street, and that some of this is directed at Rocky-Marley. This is supported by some of the evidence of Officer Fry. He says that Rocky-Marley reacts to the tensions. [46] The effect of Officer Fry’s evidence is that another attack on a member of the public by Rocky-Marley is inevitable, if he is not effectively enclosed and controlled. He gave evidence of the previous reports concerning Rocky- Marley, his observations of the tensions in the street and the presence of many children and people with disabilities in the area, and his view that Rocky-Marley reacts to the tensions. [47] Officer Fry impressed me as a dedicated officer and experienced dog handler. I consider that he is sincerely concerned for Rocky-Marley’s welfare and that he has gone to considerable lengths to try to ensure that Ms Close could meet conditions for keeping her dog, especially the ability to keep him in a secure and childproof enclosure. I do not consider that the requirements for de-sexing or micro-chipping would alone be sufficient to justify a destruction order for Rocky-Marley. [48] Unfortunately Ms Close has not been able to meet the requirements to securely enclose Rocky-Marley. There were no proposals for doing so, or for any other reasonable alternative for ensuring the protection of the public, put before the Tribunal. [49] I find that in the absence of a secure childproof enclosure and in the circumstances of the neighbourhood where he lives, that Rocky-Marley presents a risk of causing injury or damage and is a risk to community safety. [50] I therefore confirm the destruction order issued by the Moreton Bay Regional Council on 13 February 2015. [51] I note however that it is still within the discretion of the Moreton Bay Regional Council whether and when to give effect to the order. The Moreton Bay Regional Council has shown its willingness in the past to work with Ms Close to find a way to securely enclose Rocky-Marley, and I urge them to make another attempt. -- 9 of 9 --